ICYMI: Make The NLRB Less Great Again

“Stop the presses! President Trump has nominated a second new commissioner to the National Labor Relations Board!”

Okay, yes, we jest. In reality, most Americans have probably never heard of the panel. They haven’t heard of William Emanuel or Marvin Kaplan — Trump’s appointees to the panel. They aren’t aware that this will give the panel its first Republican majority since 2009, and they probably haven’t even heard the acronym NLRB, let alone have the foggiest idea what it stands for.

But during the Obama years, the NLRB suddenly took on an outsized importance in Washington. It issued scads of economically crucial rulings, upending centuries of legal precedent on a cumulative basis, and leaving a lot of messes that Trump’s appointees must now clean up. One of the clear lessons of the Obama era is that this obscure panel possesses — or at least aspires to — far more power than it really ought to have.

The NLRB’s ostensible purpose is to promote labor peace by resolving disputes between workers, employers and unions so that they don’t need to clog the federal court dockets. But during the Obama era, the NLRB morphed into a crusading mini-legislature seeking to slow or reverse the natural demise of labor unions. It propagated many dubious rulings that overturned decades of established precedent. Over the objections of its Republican minority, the panel even attempted to establish new rules on employers never previously found guilty of unfair employment practices.

Many recent NLRB actions had to be overturned by the courts later, and some must still be overturned.

It now falls to Trump’s appointees to restore fairness and balance to labor law after eight years of overt, lawless favoritism toward union bosses.

Because it is such an obscure panel, many of the Obama NLRB’s abuses went under the radar. For example, you probably wouldn’t even know that last June, Obama’s NLRB even issued a ruling overturning an 80-year old Supreme Court precedent on when and for what reasons employers may permanently replace a striking employee. The specific issues of the case aside, Americans are simply not living under the rule of law if the NLRB, a creature of Congress, can just abruptly overturn long-established precedents of the highest court in the land.

The labor panel made a lot more news with its 2015 decision upending the entire franchise model of American business. This was done in the hopes of letting unions capture monopoly bargaining rights and dues money on a mass scale, rather than having to do the work of winning over employees for each individual local employer who operates a local McDonalds or Ace Hardware franchise. It is the local employer, after all, who hires, fires, and pays employees, yet the NLRB wants to give union bosses access to the bigger companies.

Obama’s NLRB introduced “quickie elections,” along with a requirement that employers hand over, on demand, the phone numbers and other private information of their employees to union organizers on two days’ notice. And it’s not enough for employers just to give them what they have in their database — they now have to check with every supervisor to see which workers’ private information they have. The sole purpose of this requirement is to help unions win organizing drives more frequently.

Obama’s NLRB has ruled that workers have a right to use their employers’ email systems for organizing. It tried to create a new rule forcing employers to prominently advertise unionization, even if they don’t want to. This latter rule was struck down by the courts, because federal law simply doesn’t give the NLRB authority to issue it.

And of course, let’s not forget that, in his haste to establish a quorum and provide unions with as much help as he possibly could, former President Barack Obama made recess appointments to the panel which were later ruled unconstitutional by a unanimous Supreme Court decision.

These are just a few examples of the mischief this little panel created during the Obama years. We urge Congress once again to curtail this panel’s authority immediately, before another union-crusading president takes power and tries to replicate Obama’s mischief. And we also hope the Senate will quickly confirm the new appointees so that they can steer the NLRB in a direction that is both more constructive and truer to the purpose of its existence.